Horne v. Horne
Horne v. Horne
Dissenting Opinion
Dissenting Opinion by
I simply cannot go along with the conclusion that this plaintiff acquired a Pennsylvania domicile. Our courts have been vigilant to protect Pennsylvania wives from attempts by their husbands to evade support orders by obtaining divorces out of the state. See
In a divorce proceeding it must affirmatively appear that there has been a clear intention on the part of the plaintiff to abandon a former residence and to make Pennsylvania his permanent domicile, coupled with an actual bona fide residence for one year within this Commonwealth: Gearing v. Gearing, 83 Pa. Superior Ct. 423; Alburger v. Alburger, 138 Pa. Superior Ct. 339, 10 A. 2d 888. Far from establishing plaintiff’s domicile in Pennsylvania, the record clearly discloses that plaintiff is still a resident of the State of New York, which is his place of employment. He is lieénsed to drive in New York, where his automobile is registered. He continues to engage extensively in social, community and fraternal activities in New York, whereas he belongs to no organizations whatever in Philadelphia. He does not vote in Philadelphia, and he pays no Philadelphia wage tax. In fact the master found that plaintiff’s residence here was of a “transient character”, and reached the conclusion that domicile was éstablished “after much hesitation”.
Opinion of the Court
Opinion by
In this divorce action, brought by the husband on the ground of indignities to his person, the master who heard the case recommended a divorce. The court
The parties were married on September 26, 1942, at Millbourne, Delaware County, Pennsylvania. They had lived together before that time at 54 West 129th Street, New York City, and they continued to reside at that address until October 24, 1953. The plaintiff is fifty-eight years of age and the defendant some six years his junior. There were no children of the marriage.
The plaintiff is employed as a box maker and carpenter by the Pepsi-Cola Metropolitan Bottling Company of New York. On October 24, 1953 he left the 129th Street home and took up residence with his sister at 153 West 123rd Street, New York, where he remained for a little over a year, taking his meals at a rooming and boarding house operated by a Miss Lillian Freeman at 112 West 131st Street. In November or December of 1954 he moved from 123rd Street and rented a room in Miss Freeman’s establishment. He occupied the room on 131st Street and took his meals there when in New York up to the time of the hearings. In October of 1955 he moved to Philadelphia, having purchased a home at 603 North 52nd Street in that city. His testimony is that he at that time established his home in Philadelphia, that he intended to make Philadelphia his permanent home, and that since October of 1955 he has spent his weekends here, leaving for New York on Sunday evenings and remaining there at his employment until his return to Philadelphia on Friday evenings. The complaint was filed on September 11, 1957.
We agree with Judge Ullman of the court below that “The circumstances of the purchase of the 52nd. Street home and the manner in which title was taken are unusual, but they do not negative the plaintiff’s acquisition of a Pennsylvania domicile.” Some time in
The manner in which title was taken is not evidence that the plaintiff did not acquire a Pennsylvania domicile; nor does it, as the defendant suggests, compel the conclusion that there was a meretricious relationship between the plaintiff and Miss Freeman which might make him other than an injured and innocent spouse. Miss Freeman, a woman twenty years younger than the plaintiff, was a close friend of the plaintiff’s sister. Hho loaned the plaintiff $6,500.00, taking the
The basic jurisdictional requirement with respect to residence within the Commonwealth is contained in §16 of the Act of May 2,1929, P. L. 1237, as amended, 23 PS §16: “No spouse shall be entitled to commence proceedings for divorce by virtue of this act who shall not have been a bona fide resident of this Commonwealth at least one whole year immediately previous to the filing of his or her petition or libel: Provided, That, if the proceedings for divorce are commenced in the county where the respondent has been a bone fide resident at least one whole year immediately previous to the filing of such proceedings, in such case, residence of the libellant within the county or State for any period shall not be required. The libellant shall be a competent witness to prove his or her residence.” Bone fide residence has been held repeatedly to mean residence with domiciliary intent. Temporary residence within the Commonwealth for one year will not suffice; the plaintiff must have his legal domicile here: Reed v. Reed, 30 Pa. Superior Ct. 229; Lyon v. Lyon, 13 Dist. 623. By domicile is meant the place where a person has his true, fixed, permanent home and principal establishment, to which whenever he is absent he has the
The plaintiff testified—and he was corroborated in many details by witnesses whom he called—to a course of conduct on the part of the defendant, especially during the latter years of their cohabitation, which, if believed, was well calculated to render the life of any man of reasonable sensibility burdensome and his con
The law on the subject of indignities to the person has been so thoroughly stated in so many recent opinions that we deem it unnecessary to repeat it here.
Suffice it to say that we have made an independent study of the evidence and are convinced that the plaintiff was entitled to a divorce a.v.m.
Order affirmed.
Reference
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